Gerald Schwear v. Diane Prigge

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FD-12-1224-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 13, 2011

Before Judges Messano and Espinosa.

Dianne Prigge appeals from an order that granted custody of her daughter, "Cathy,"*fn1 to Cathy's paternal great uncle. We reverse and remand.

Cathy was born in August 1994 to Prigge and Todd Schwear. When she was just two days old, the Division of Youth and Family Services obtained temporary custody of Cathy on an emergency basis.*fn2 By order dated December 3, 2000, the court "reaffirm[ed] the establishment of sole custody" of Cathy to her paternal grandfather, Donald Schwear, and enjoined and restrained Prigge from having any contact with Cathy, including telephone contact. The order explicitly stated that Prigge could reapply for relief from the order, provided she complied with all previously ordered obligations, including cooperating in a custody investigation by the Middlesex County Probation Department and submitting to a personal interview with the court appointed expert. In February 2004, an order was entered that granted Prigge's request for telephone contact.

In 2005, Cathy resided with Donald in Pennsylvania; Prigge resided in Arizona, and Todd Schwear also resided outside New Jersey. An order was entered in 2005 that dismissed the matter for lack of jurisdiction. No order has ever been entered terminating Prigge's parental rights.

In June 2010, Cathy and Donald moved to New Jersey to live with Donald's brother, plaintiff Gerald Schwear. Donald died in August 2010.

In January 2011, when Cathy had resided in New Jersey for six months, Gerald filed a verified complaint for custody. Both biological parents were served with the complaint and a consent form to allow Gerald and his wife to be named guardians of Cathy. Todd Schwear gave his consent and is not a party to this appeal. Prigge did not consent. Pursuant to her request, she participated in a hearing with the court on the application by telephone.

In the hearing, the judge referred to the order entered in December 2000, specifically the paragraph that provided that "[s]ole custody of the child was with the defendant, Donald Schwear[,]" and noted the denial of visitation to Prigge. In addressing Prigge, the judge said, "[L]et me hear from you in terms of your request that I essentially disturb a previously existing order and grant you custody of the child[.]" In response, Prigge stated that her parental rights were being ignored. In the colloquy with Prigge that followed, the judge continued to refer to Prigge's request as one to "disturb[] a previous court order," to "change the custody arrangements as they have been[.]" Further, the judge told Prigge, "[Y]ou have the burden to show that there is a change in circumstance that would warrant that . . . custody be vested with you." When the court began to issue its ruling, referring to "a previously entered order," Prigge interrupted and stated that she was unable to file for custody because she had not known that Donald had passed away. Prigge continued to interrupt, and the judge terminated the telephone call. The resulting order granted custody of Cathy to Gerald Schwear "without prejudice to any future application by defendant, Diane Prigge, upon a showing of a change in circumstance."

We are constrained to reverse because the court did not apply the correct legal standard to this dispute. Although the court considered the issue to be whether an existing custody order should be modified as a result of a change in circumstances, the only order was one that granted custody to Donald Schwear, who had died. There was no order that awarded custody to plaintiff. Since Prigge's parental rights have never been terminated, the complaint filed by Gerald presented an application by a third party to obtain custody. As a result, this was a custody dispute between a natural parent and a third party, governed by Watkins v. Nelson, 163 N.J. 235 (2000).

In such a dispute, there is a presumption in favor of the natural parent which arises from a parent's "fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and is "rooted in the right to privacy." Moriarty v. Bradt, 177 N.J. 84, 101 (2003); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944); Watkins, supra, 163 N.J. at 245. The parent's right to custody is not absolute, however. The presumption in favor of the parent will be overcome by "a showing of gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child[.]" Watkins, supra, 163 N.J. at 246.

When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of "unfitness" or "exceptional circumstances." If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. Watkins, supra, 163 N.J. at 254; P.B. v. T.H., 370 N.J. Super. 586, 594 (App. Div. 2004).

The trial court failed to engage in this analysis before awarding custody to plaintiff. As a result, the order must be reversed and the matter remanded for ...

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